G.R. No. 176518. March 2, 2010.

*
THE PARENTS-TEACHERS ASSOCIATION (PTA) OF ST. MATHEW CHRISTIAN
ACADEMY, GREGORIO INALVEZ, JR., ROWENA LAYUG, MALOU MALVAR, MARILOU
BARAQUIO, GARY SINLAO, LUZVIMINDA OCAMPO, MARIFE FERNANDEZ, FERNANDO
VICTORIO, ERNESTO AGANON and RIZALINO MANGLICMOT, represented by their
Attorney-in-Fact, GREGORIO INALVEZ, JR., petitioners, vs. THE METROPOLITAN
BANK and TRUST CO., respondent.

Remedial Law; Foreclosures; Writs of Possession; As a rule, it is ministerial upon the court to
issue a writ of possession after the foreclosure sale and during the period of redemption;
Exception is where it appears that there is a third party in possession of the property who is
claiming a right adverse to that of the debtor/mortgagor.—As a rule, it is ministerial upon the
court to issue a writ of possession after the foreclosure sale and during the period of
redemption. Section 7 of Act No. 3135 explicitly authorizes the purchaser in a foreclosure sale
to apply for a writ of possession during the redemption period by filing an ex parte motion
under oath for that purpose “in the registration or cadastral proceedings if the property is
registered, or in special proceedings in the case of property registered under the Mortgage Law”
with the Regional Trial Court of the province or place where the real property or any part
thereof is situated, in the case of mortgages duly registered with the Registry of Deeds. Upon
filing of such motion and the approval of the corresponding bond, the law also directs in
express terms the said court to issue the order for a writ of possession. However, this rule is
not without exception. In Barican v. Intermediate Appellate Court, 162 SCRA 358 (1988), we
held that the obligation of a court to issue an ex parte writ of possession in favor of the
purchaser in an extrajudicial foreclosure sale ceases to be ministerial once it appears that there
is a third party in possession of the property who is claiming a right adverse to that of the
debtor/mortgagor.

Same; Same; Same; The ex parte petition for the issuance of a writ of possession under Section
7 of Act No. 3135 is not strictly speaking a “judicial process” as contemplated in Article 433 of
the Civil Code.—This ex parte petition for the issuance of a writ of possession under Section 7
of Act No. 3135 is not, strictly speaking, a “judicial process” as contemplated in Article 433 of
the Civil Code. As a judicial proceeding for the enforcement of one’s right of possession as
purchaser in a foreclosure sale, it is not an ordinary suit by which one party “sues another for
the enforcement of a wrong or protection of a right, or the prevention or redress of a wrong.”

Same; Same; Same; Even if the application for the writ of possession was denominated as a
“petition,” it was in substance merely a motion; no verification and certification on non-forum
shopping need be attached to the motion.—It is not necessary to initiate an original action in
order for the purchaser at an extrajudicial foreclosure of real property to acquire possession.
Even if the application for the writ of possession was denominated as a “petition,” it was in
substance merely a motion. Indeed, any insignificant lapse in the certification on non-forum
shopping filed by the MBTC did not render the writ irregular. After all, no verification and
certification on non-forum shopping need be attached to the motion.

Same; Same; Same; The nature of the ex parte petition for issuance of possessory writ under
Act. No. 3135 to be a non-litigious proceeding and summary in nature.—In Idolor v. Court of
Appeals, 450 SCRA 396 (2005), we described the nature of the ex parte petition for issuance of
possessory writ under Act No. 3135 to be a non-litigious proceeding and summary in nature. As
an ex parte proceeding, it is brought for the benefit of one party only, and without notice to, or
consent by any person adversely interested. It is a proceeding where the relief is granted
without requiring an opportunity for the person against whom the relief is sought to be heard.
It does not matter even if the herein petitioners were not specifically named in the writ of
possession nor notified of such proceedings.

Same; Same; Same; As it is, the law does not require that a petition for a writ of possession
may be granted only after documentary and testimonial evidence shall have been offered to
and admitted by the court.—Here in the present case, we similarly reject petitioners’ contention
that the trial court should have conducted a trial prior to issuing the Order denying their motion
to intervene. As it is, the law does not require that a petition for a writ of possession may be
granted only after documentary and testimonial evidence shall have been offered to and
admitted by the court. As long as a verified petition states the facts sufficient to entitle the
petitioner to the relief requested, the court shall issue the writ prayed for. There is no need for
petitioners to offer any documentary or testimonial evidence for the court to grant the petition.

Same; Same; Same; Any question regarding the regularity and validity of the sale (and the
consequent cancellation of the writ) is left to be determined in a subsequent proceeding as
outlined in Section 8.—In De Gracia v. San Jose, 94 Phil. 623 (1954), we held that: x x x the
order for a writ of possession issues as a matter of course upon the filing of the proper motion
and the approval of the corresponding bond. No discretion is left to the court. And any question
regarding the regularity and validity of the sale (and the consequent cancellation of the writ) is
left to be determined in a subsequent proceeding as outlined in section 8. Such question is not
to be raised as a justification for opposing the issuance of the writ of possession, since, under
the Act, the proceeding for this is ex parte.

Same; Pleadings and Practice; Certification of Non-forum Shopping; Verification; A non-forum

shopping is required only in a complaint or a petition which is an initiatory pleading.—x x x it
bears stressing that a certification on non-forum shopping is required only in a complaint or a
petition which is an initiatory pleading. In this case, the subject petition for the issuance of a
writ of possession filed by private respondent is not an initiatory pleading. Although private
respondent denominated its pleading as a petition, it is more properly a motion. What
distinguishes a motion from a petition or other pleading is not its form or the title given by the
party executing it, but its purpose. The purpose of a motion is not to initiate litigation, but to
bring up a matter arising in the progress of the case where the motion is filed.

Same; Same; Motion for Reconsideration; As a general rule, a motion for reconsideration should
precede recourse to certiorari in order to give the trial court an opportunity to correct the error
that it may have committed; Exceptions.—As a general rule, a motion for reconsideration should
precede recourse to certiorari in order to give the trial court an opportunity to correct the error
that it may have committed. The said rule is not absolute and may be dispensed with in
instances where the filing of a motion for reconsideration would serve no useful purpose, such
as when the motion for reconsideration would raise the same point stated in the motion or
where the error is patent for the order is void or where the relief is extremely urgent, as in
cases where execution had already been ordered where the issue raised is one purely of law.

Same; Same; Equity; Equity is available only in the absence of law and not as its
replacement.—While equity which has been aptly described as “justice outside legality” is
applied only in the absence of, and never against, statutory law or judicial rules of procedure.
Positive rules prevail over all abstract arguments based on equity contra legem. For all its
conceded merit, equity is available only in the absence of law and not as its replacement.

PETITION for review on certiorari of the decision and resolution of the Court of Appeals.

The facts are stated in the opinion of the Court.

Jesusa A. Concepcion for petitioners.

Ricardo C. Atienza for respondents.

DEL CASTILLO, J.:

As a general rule, the issuance of a writ of possession after the foreclosure sale and during the
period of redemption is ministerial. As an exception, it ceases to be ministerial if there is a third
party holding the property adversely to the judgment debtor.

In this case, we find that petitioners’ right over the foreclosed property is not adverse to that of
the judgment debtor or mortgagor. As such, they cannot seek the quashal or prevent the
implementation of the writ of possession.

Factual Antecedents

The facts of this case as summarized by the Court of Appeals (CA) in its assailed Decision1
dated November 29, 2006 are as follows:

“Sometime in 2001, the spouses Denivin Ilagan and Josefina Ilagan (spouses Ilagan) applied for
and were granted a loan by the [Metropolitan Bank and Trust Co.] in the amount of x x x
(P4,790,000.00) [secured by] x x x a Real Estate Mortgage over the parcels of land covered by
Transfer Certificates of Title with Nos. 300203, 285299, 278042, 300181, 300184, 300191,
300194, and 300202, respectively.

Upon default, an extrajudicial foreclosure was conducted with [Metropolitan Bank and Trust
Co.] being the highest bidder x x x and for which a Certificate of Sale was issued in its favor.

During the period of redemption, the respondent Bank filed an Ex-Parte Petition for Issuance of
a Writ of Possession docketed as LRC Case No. 6438 by posting x x x the required bond which
was subsequently approved. x x x

[On June 30, 2005], the St. Mathew Christian Academy of Tarlac, Inc. filed a Petition for
Injunction with Prayer for Restraining Order docketed as Special Civil Action No. 9793 against
the respondent Bank and the Provincial Sheriff of Tarlac.

On August 16, 2005, the x x x Judge issued a Joint Decision in LRC Case No. 6438 and Special
Civil Action No. 9793, the contents of which are x x x as follows:
JOINT DECISION

Metropolitan Bank x x x is now entitled to a writ of possession, it being mandatory even during
the period of redemption.

The school, St. Mathew Christian [Academy] filed the petition for injunction on the ground that
it cannot be ejected being a third party.

x x x St. Mathew Christian Academy is practically owned by the mortgagors, spouses Denivin
and Josefina Ilagan. Firstly, the lease to St. Mathew by the Ilagans, as lessor, was for a period
of one year from the execution of the lease contract in 1998. Therefore, the lease should have
expired in 1999. However, since the lease continued after 1999, the lease is now with a definite
period, or monthly, since the payment of lease rental is monthly. (Articles 1670 and 1687, Civil
Code). Therefore, the lease expires at the end of each month.

Secondly, the lease was not registered and annotated at the back of the title, and therefore, not
binding on third persons. (Article 1648, Civil Code)

Thirdly, the spouses are the owners or practically the owners of St. Mathew. Even if it has a
separate personality, nevertheless, “piercing the veil of corporate entity” is resorted to for the
spouses should not be allowed to commit fraud under the separate entity/personality of St.
Mathew.

In connection with the allegation of the spouses Ilagans that the mortgage contract contains
provision which is pactum commisorium, the Court does not agree. What is prohibited is the
automatic appropriation without the public sale of the mortgaged properties.

The interest charges may be exorbitant, but it does not of itself cause the nullity of the entire
contract of mortgage.

There is also no violation on the proscription on forum shopping. What is important is that,
there is really no other case between the parties involving the same subject matter.

In fine, St. Mathew is not really a third person. It is bound by the writ of possession issued by
this Court.

WHEREFORE, the writ of possession issued by this Court dated April 22, 2005 is hereby
affirmed, Civil Case No. 9793 is dismissed. No costs.

SO ORDERED.”

Pending resolution of the motion for reconsideration of the said Joint Decision, herein
petitioners Parents-Teachers Association (PTA) of St. Mathew Christian Academy (SMCA) and
Gregorio Inalvez, Jr., Rowena Layug, Malou Malvar, Marilou Baraquio, Gary Sinlao, Luzviminda
Ocampo, Marife Fernandez, Fernando Victorio, Ernesto Aganon, and Rizalino Manglicmot who
are teachers and students of SMCA, filed a Motion for Leave to file Petition in Intervention3 in
Special Civil Action No. 9793, which was granted by the trial court in an Order dated November
10, 2005.4 However, in a subsequent Order dated December 7, 2005, the trial court reversed
its earlier Order by ruling that petitioners’ intervention would have no bearing on the issuance
and implementation of the writ of possession. Thus, it directed that the writ be implemented by
placing respondent Metropolitan Bank and Trust Company (MBTC) in physical possession of the
property.5

Without filing a motion for reconsideration, petitioners assailed the trial court’s Order through a
Petition for Certiorari and Prohibition before the CA. However, said petition was dismissed by
the CA for lack of merit in its assailed Decision dated November 29, 2006. It held thus:

“Considering that in this case the writ of possession had already been issued x x x petitioners’
remedy was to file x x x a petition that the sale be set aside and the writ of possession
cancelled. Instead, petitioners filed the instant Petition for Certiorari.

Moreover, no motion for reconsideration of the said Order directing the issuance of a writ of
possession was filed neither was there any motion for reconsideration of the assailed Order of 7
December 2005 prior to the institution of the instant Petition for Certiorari to afford the
respondent Court an opportunity to correct its alleged error. The rule is that certiorari as a
special civil action will not lie unless a motion for reconsideration is filed before the respondent
tribunal to allow it to correct its imputed error. While there are exceptions to the rule, none has
been invoked by petitioners.

WHEREFORE, premises considered, the instant Petition is hereby DISMISSED for lack of merit.

SO ORDERED.”

Petitioners filed a Motion for Reconsideration but the motion was denied in a Resolution dated
January 29, 2007.

Hence, petitioners filed this Petition for Review on Certiorari.

Issues

1. THE COURT OF APPEALS COMMITTED A CLEAR AND REVERSIBLE ERROR WHEN IT FAILED
AND REFUSED TO CONSIDER THE GROUNDS RELIED UPON IN THE PETITION BEFORE IT
WHEN THE SAME ARE CLEARLY MERITORIOUS AND ARE BASED ON THE LAW AND JUSTICE;

2. THE COURT OF APPEALS COMMITTED A CLEAR AND REVERSIBLE ERROR WHEN IT FAILED
AND REFUSED TO CONSIDER THAT THE REMEDY AVAILABLE TO HEREIN PETITIONERS IS THE
SPECIAL CIVIL ACTION OF CERTIORARI AND NOT A PETITION TO SET ASIDE THE
FORECLOSURE SALE IN LRC CASE No. 6438;

3. THE COURT OF APPEALS COMMITTED A CLEAR AND REVERSIBLE ERROR IN RULING THAT
A MOTION FOR RECONSIDERATION IS STILL NEEDED BEFORE THE PETITIONERS COULD FILE
A SPECIAL CIVIL ACTION OF CERTIORARI; and
4. THE COURT OF APPEALS COMMITTED A CLEAR AND REVERSIBLE ERROR IN NOT
HOLDING THAT CONSIDERATIONS OF JUSTICE AND EQUITY, AND NOT TECHNICALITY,
SHOULD BE THE BASES FOR THE RESOLUTION OF THE PETITION BEFORE IT.7

Our Ruling

The petition is bereft of merit.

Petitioners are not “Third Parties”

against whom the writ of possession
cannot be issued and implemented.

As a rule, it is ministerial upon the court to issue a writ of possession after the foreclosure sale
and during the period of redemption.8 Section 7 of Act No. 3135 explicitly authorizes the
purchaser in a foreclosure sale to apply for a writ of possession during the redemption period
by filing an ex parte motion under oath for that purpose “in the registration or cadastral
proceedings if the property is registered, or in special proceedings in the case of property
registered under the Mortgage Law” with the Regional Trial Court of the province or place
where the real property or any part thereof is situated, in the case of mortgages duly registered
with the Registry of Deeds. Upon filing of such motion and the approval of the corresponding
bond, the law also directs in express terms the said court to issue the order for a writ of
possession.9However, this rule is not without exception. In Barican v. Intermediate Appellate
Court,10 we held that the obligation of a court to issue an ex parte writ of possession in favor
of the purchaser in an extrajudicial foreclosure sale ceases to be ministerial once it appears that
there is a third party in possession of the property who is claiming a right adverse to that of the
debtor/mortgagor. This ruling was reiterated in Policarpio v. Active Bank11 where we held that:

“Ordinarily, a purchaser of property in an extrajudicial foreclosure sale is entitled to possession

of the property. Thus, whenever the purchaser prays for a writ of possession, the trial court has
to issue it as a matter of course. However, the obligation of the trial court to issue a writ of
possession ceases to be ministerial once it appears that there is a third party in possession of
the property claiming a right adverse to that of the debtor/mortgagor. Where such third party
exists, the trial court should conduct a hearing to determine the nature of his adverse
possession.” (Emphasis supplied)

In this case, we find that petitioners cannot be considered as third parties because they are not
claiming a right adverse to the judgment debtor. Petitioner-teachers and students did not claim
ownership of the properties, but merely averred actual “physical possession of the subject
school premises.”12 Petitioner-teachers’ possession of the said premises was based on the
employment contracts they have with the school. As regards the petitioner-students, Alcuaz v.
Philippine School of Business Administration13 and Non v. Dames II14 characterized the school-
student relationship as contractual in nature. As such, it would be specious to conclude that the
teachers and students hold the subject premises independent of or adverse to SMCA. In fact,
their interest over the school premises is necessarily inferior to that of the school. Besides, their
contracts are with the school and do not attach to the school premises. Moreover, the
foreclosure of the current school premises does not prevent the SMCA from continuing its
operations elsewhere.
At this point, it is relevant to note that in the Joint Decision dated August 16, 2005, the trial
court found that SMCA was not a third party and was therefore bound by the said writ of
possession.15 Consequently, it affirmed the issuance of the writ of possession.

MBTC thus correctly argued that petitioners did not have superior rights to that of SMCA over
the subject property because their supposed possession of the same emanated only from the
latter. Since petitioners’ possession of the subject school premises stemmed from their
employment or enrollment contracts with the school, as the case may be, necessarily, their
right to possess the subject school premises cannot be adverse to that of the school and of its
owners. As such, the petitioners cannot be deemed “third parties” as contemplated in Act No.
3135, as amended.

The lack of authority to sign the certificate

of non-forum shopping attached to the
Petition for Issuance of Writ of Possession
was an insignificant lapse.

Petitioners further claim that the lack of authority to sign the certificate on non-forum shopping
attached to the Petition for the Issuance of the Writ of Possession rendered the same worthless
and should be deemed as non-existent.16 MBTC asserts otherwise, citing Spouses Arquiza v.
Court of Appeals17 where we held that an application for a writ of possession is a mere incident
in the registration proceeding which is in substance merely a motion,18 and therefore does not
require such a certification.

Petitioners’ contention lacks basis. In Green Asia Construction and Development Corporation v.
Court of Appeals,19 where the issue of validity of the Certificate of Non-Forum Shopping was
questioned in an application for the issuance of a Writ of Possession, we held that:

“x x x it bears stressing that a certification on non-forum shopping is required only in a

complaint or a petition which is an initiatory pleading. In this case, the subject petition for the
issuance of a writ of possession filed by private respondent is not an initiatory pleading.
Although private respondent denominated its pleading as a petition, it is more properly a
motion. What distinguishes a motion from a petition or other pleading is not its form or the title
given by the party executing it, but its purpose. The purpose of a motion is not to initiate
litigation, but to bring up a matter arising in the progress of the case where the motion is
filed.”20 (Emphasis supplied)

It is not necessary to initiate an original action in order for the purchaser at an extrajudicial
foreclosure of real property to acquire possession.21 Even if the application for the writ of
possession was denominated as a “petition”, it was in substance merely a motion.22 Indeed,
any insignificant lapse in the certification on non-forum shopping filed by the MBTC did not
render the writ irregular. After all, no verification and certification on non-forum shopping need
be attached to the motion.23

Hence, it is immaterial that the certification on non-forum shopping in the MBTC’s petition was
signed by its branch head. Such inconsequential oversight did not render the said petition
defective in form.
The trial court’s Order did not violate
the petitioner-students’ right to quality
education and academic freedom.

We disagree with petitioners’ assertion that the students’ right to quality education and
academic freedom was violated. The constitutional mandate to protect and promote the right of
all citizens to quality education at all levels24 is directed to the State and not to the school. On
this basis, the petitioner-students cannot prevent the MBTC from acquiring possession of the
school premises by virtue of a validly issued writ of possession.

There is likewise no violation of the so-called academic freedom. Article XIV, Section 5(2) of the
Constitution mandates “that academic freedom shall be enjoyed in all institutions of higher
learning.” Academic freedom did not go beyond the concept of freedom of intellectual
inquiry,26 which includes the freedom of professionally qualified persons to inquire, discover,
publish and teach the truth as they see it in the field of their competence subject to no control
or authority except of rational methods by which truths and conclusions are sought and
established in these disciplines. It also pertains to the right of the school or college to decide for
itself, its aims and objectives, and how best to attain them—the grant being given to
institutions of higher learning—free from outside coercion or interference save possibly when
the overriding public welfare calls for some restraint.27 In Garcia v. The Faculty Admission
Committee, Loyola School of Theology,28 we held that:

“[I]t is to be noted that the reference is to the ‘institutions of higher learning’ as the recipients
of this boon. It would follow then that the school or college itself is possessed of such a right. It
decides for itself its aims and objectives and how best to attain them. It is free from outside
coercion or interference save possibly when the overriding public welfare calls for some
restraint. It has a wide sphere of autonomy certainly extending to the choice of students. This
constitutional provision is not to be construed in a niggardly manner or in a grudging fashion.
That would be to frustrate its purpose, nullify its intent. x x x It is the business of a university to
provide that atmosphere which is most conducive to speculation, experiment and creation. It is
an atmosphere in which there prevail the ‘four essential freedoms’ of a university—to determine
for itself on academic grounds who may teach, what may be taught, how it shall be taught, and
who may be admitted to study.”

In this case, except for their bare allegation that “if the school will be ejected because of the
writ of possession, the students will necessarily be ejected also”29 and “thereby their learning
process and other educational activities shall have been disrupted,”30 petitioners miserably
failed to show the relevance of the right to quality education and academic freedom to their
case or how they were violated by the Order granting the writ of possession to the winning
bidder in the extrajudicial foreclosure sale.

The petitioners were accorded

due process.

The petitioners argue that the court below did not conduct trial for the presentation of evidence
to support its conclusion that the intervention would have no bearing on the issuance and
implementation of the writ of possession,31 thereby depriving them of due process.
Petitioners’ contention is without merit. It is settled that the issuance of a writ of possession is a
ministerial duty of the court.32 The purchaser of the foreclosed property, upon ex parte
application and the posting of the required bond, has the right to acquire possession of the
foreclosed property during the 12-month redemption period.33

This ex parte petition for the issuance of a writ of possession under Section 7 of Act No. 3135 is
not, strictly speaking, a “judicial process” as contemplated in Article 43334 of the Civil Code.35
As a judicial proceeding for the enforcement of one’s right of possession as purchaser in a
foreclosure sale, it is not an ordinary suit by which one party “sues another for the enforcement
of a wrong or protection of a right, or the prevention or redress of a wrong.”36

In Idolor v. Court of Appeals,37 we described the nature of the ex parte petition for issuance of
possessory writ under Act No. 3135 to be a non-litigious proceeding and summary in nature. As
an ex parte proceeding, it is brought for the benefit of one party only, and without notice to, or
consent by any person adversely interested.38 It is a proceeding where the relief is granted
without requiring an opportunity for the person against whom the relief is sought to be
heard.39 It does not matter even if the herein petitioners were not specifically named in the
writ of possession nor notified of such proceedings.40 In Sagarbarria v. Philippine Business
Bank,41 we rejected therein petitioner’s contention that he was denied due process when the
trial court issued the writ of possession without notice.

Here in the present case, we similarly reject petitioners’ contention that the trial court should
have conducted a trial prior to issuing the Order denying their motion to intervene.42 As it is,
the law does not require that a petition for a writ of possession may be granted only after
documentary and testimonial evidence shall have been offered to and admitted by the court.43
As long as a verified petition states the facts sufficient to entitle the petitioner to the relief
requested, the court shall issue the writ prayed for. There is no need for petitioners to offer any
documentary or testimonial evidence for the court to grant the petition.44

The proper remedy for the petitioners is a

separate, distinct and independent suit,
provided for under Act No. 3135.

Petitioners assert that Section 8 of Act No. 3135 specifically refers to “the debtor” as the party
who is required to file a petition for the cancellation of the writ of possession in the same
proceeding in which possession was requested.45 As they are not the debtors referred to in the
said law, petitioners argue that the filing of a petition for the cancellation of the writ of
possession in the same proceeding in which possession was requested, does not apply to
them.46 Hence, they allege that it was improper for the CA to conclude that the Petition for
Certiorari was the wrong remedy in the case where the writ of possession was issued.47

Respondent, on the other hand, avers that certiorari is available only when there is grave abuse
of discretion amounting to lack or excess of jurisdiction and there is no appeal, or any plain,
speedy and adequate remedy in the ordinary course of law.48 In the instant case, the
respondent argues that the court merely granted the Writ of Possession in accordance with
settled jurisprudence49 and that the remedy of certiorari does not lie because there is an
available remedy which is an appeal.50
We hold that the CA correctly held that the proper remedy is a separate, distinct and
independent suit provided for in Section 8 of Act No. 313551 viz.:

“SEC. 8. The debtor may, in the proceedings in which possession was requested, but not later
than thirty days after the purchaser was given possession, petition that the sale be set aside
and the writ of possession canceled, specifying the damages suffered by him, because the
mortgage was not violated or the sale was not made in accordance with the provisions hereof,
and the court shall take cognizance of this petition in accordance with the summary procedure
provided for in section one hundred and twelve of Act Numbered Four hundred and ninety-six;
and if it finds the complaint of the debtor justified, it shall dispose in his favor of all or part of
the bond furnished by the person who obtained possession. Either of the parties may appeal
from the order of the judge in accordance with section fourteen of Act Numbered Four hundred
and ninety-six; but the order of possession shall continue in effect during the pendency of the
appeal.”

In De Gracia v. San Jose,52 we held that:

“x x x the order for a writ of possession issues as a matter of course upon the filing of the
proper motion and the approval of the corresponding bond. No discretion is left to the court.
And any question regarding the regularity and validity of the sale (and the consequent
cancellation of the writ) is left to be determined in a subsequent proceeding as outlined in
section 8. Such question is not to be raised as a justification for opposing the issuance of the
writ of possession, since, under the Act, the proceeding for this is ex parte.” (Emphasis
supplied)

Since the writ of possession had already been issued in LRC Case No. 6438 per Order dated
November 29, 2005, the proper remedy is an appeal and not a petition for certiorari,53 in
accordance with our ruling in Metropolitan Bank and Trust Company v. Tan54 and Government
Service Insurance System v. Court of Appeals.55 As long as the court acts within its jurisdiction,
any alleged errors committed in the exercise of its discretion will amount to nothing more than
mere errors of judgment, correctable by an appeal if the aggrieved party raised factual and
legal issues; or a petition for review under Rule 45 of the Rules of Court if only questions of law
are involved.

As a general rule, a motion for reconsideration must be filed before resort to the
special civil action of certiorari is made.

As a general rule, a motion for reconsideration should precede recourse to certiorari in order to
give the trial court an opportunity to correct the error that it may have committed. The said rule
is not absolute and may be dispensed with in instances where the filing of a motion for
reconsideration would serve no useful purpose, such as when the motion for reconsideration
would raise the same point stated in the motion or where the error is patent for the order is
void or where the relief is extremely urgent, as in cases where execution had already been
ordered where the issue raised is one purely of law.58

In the case at bar, the petitioners stated in their Petition for Certiorari and Prohibition before
the CA as follows
“18. Respondent sheriff and his deputies are now set to implement the said writ of possession
and are now poised to evict the students and teachers from their classrooms, grounds and
school facilities;

19. Petitioners did not anymore file a motion for reconsideration of said order x x x and is
proceeding directly to this Honorable Court because the filing of a motion for reconsideration
would serve no useful purpose x x x Besides the relief sought is extremely urgent as the
respondent sheriff is set to implement the questioned orders x x x and the circumstances herein
clearly indicate the urgency of judicial intervention x x x hence, this petition.”

Plainly, the petitioners have the burden to substantiate that their immediate resort to the
appellate court is based on any of the exceptions to the general rule. They have to show the
urgent and compelling reasons for such recourse. The afore-cited allegations of the petitioners
in their petition before the CA did not dispense with the burden of establishing that their case
falls under any of the exceptions to the general rule. Unlike the case of Ronquillo v. Court of
Appeals60 cited by the petitioners, where not only was a writ of execution issued but
petitioner’s properties were already scheduled to be sold at public auction on April 2, 1980 at
10:00 a.m., the herein petitioners failed to show the specificity and imminence of the urgency
confronting their immediate recourse to the appellate court.

We therefore hold that the CA correctly found the necessity for a prior resort to a motion for
reconsideration prior to the institution of the Petition for Certiorari.

Considerations of equity do not apply in the instant case.

The petitioners claim that the challenged decision of the CA would show that the petition was
decided on the basis of pure technicality and that the appellate court did not pass upon the
merits of the petition.61 They further assert that considerations of justice and equity and not
technicality, should be the bases for the resolution of the petition.62 MBTC, on the other hand,
argues that equity may not apply if there is applicable law and jurisprudence. In San Luis v. San
Luis,63 we expounded on the concept of justice by holding that:

“More than twenty centuries ago, Justinian defined justice “as the constant and perpetual wish
to render everyone his due.” That wish continues to motivate this Court when it assesses the
facts and the law in every case brought to it for decision. Justice is always an essential
ingredient of its decisions. Thus when the facts warrant, we interpret the law in a way that will
render justice, presuming that it was the intention of the lawmaker, to begin with, that the law
be dispensed with justice.”

While equity which has been aptly described as “justice outside legality” is applied only in the
absence of, and never against, statutory law or judicial rules of procedure.64 Positive rules
prevail over all abstract arguments based on equity contra legem. For all its conceded merit,
equity is available only in the absence of law and not as its replacement.66

In this case, justice demands that we conform to the positive mandate of the law as expressed
in Act No. 3135, as amended. Equity has no application as to do so would be tantamount to
overruling or supplanting the express provisions of the law.
In our Resolution67 dated June 4, 2007, we issued a Temporary Restraining Order enjoining
respondent to desist from implementing the Writ of Possession. We also required petitioners to
post a cash or surety bond in the amount of P50,000.00 within five days from notice, otherwise
the temporary restraining order shall be automatically lifted. The petitioners posted a cash bond
in the amount of P50,000.00 on June 27, 2007 pursuant to our June 4, 2007 Resolution.68

WHEREFORE, premises considered, the Petition for Review on Certiorari is DENIED for lack of
merit. The temporary restraining order heretofore issued is hereby LIFTED and SET ASIDE. The
Decision of the Court of Appeals dated November 29, 2006 and its Resolution dated January 29,
2007 are AFFIRMED.

SO ORDERED.

Carpio (Chairperson), Brion, Abad and Perez, JJ., concur.

Petition denied, judgment and resolution affirmed.

Note.—It is ministerial upon the court to issue a writ of possession in favor of a purchaser,
provided that a proper Parents-Teachers Association (PTA) of St. Mathew Christian Academy
vs. Metropolitan Bank and Trust Co. , 614 SCRA 41, G.R. No. 176518 March 2, 2010